Greens prep fight over Trump’s border wall

By Pamela King, Jennifer Yachnin | 10/19/2020 01:31 PM EDT

The Supreme Court has agreed to rule on a dispute between an environmental group and the Trump administration over the president's plan to use military funding to construct a border wall between the United States and Mexico.

The Supreme Court has agreed to rule on a dispute between an environmental group and the Trump administration over the president's plan to use military funding to construct a border wall between the United States and Mexico. Francis Chung/E&E News

Environmentalists are getting ready to defend their lower-court wins on President Trump’s border wall funding plans after the nation’s highest bench agreed this morning to take up the case.

The Supreme Court will review the legality of the Trump administration’s use of $2.5 billion in Defense Department funds to build a wall between the United States and Mexico after Congress appropriated only $1.375 billion for the project (Greenwire, Oct. 19).

"The Trump administration has misused military funds for the construction of a wall that has caused lasting harm to the ecosystems and communities of the borderlands, damaged sacred Indigenous lands beyond repair, and destroyed wildlife and habitats along the border," Sierra Club managing attorney Gloria Smith said in a statement this morning.


Attorneys for the government have also asked the Supreme Court to find that the Sierra Club did not have the power to sue the government over funding transfers under Section 8005 of the 2019 Department of Defense Appropriations Act.

"[T]he Organizations’ asserted recreational, aesthetic, and environmental interests clearly lie outside the zone of interests protected by § 8005," the government wrote in its petition.

"The statute does not mention recreational, aesthetic, and environmental interests, nor does it require the Secretary to consider such interests," it said.

The Trump administration may win on the standing question, which would create a hurdle for litigants fighting spending decisions — but not environmental rules, said Bob Percival, director of the University of Maryland’s environmental law program.

"While that makes it hard to challenge environmentally destructive spending," he continued, "it should not threaten standing for violations of environmental law."

Vermont Law School professor Pat Parenteau said Trump v. Sierra Club seems poised to be a "close case but could be a one-off without broad implications for environmental standing."

The American Civil Liberties Union (ACLU), which brought the lawsuit on behalf of the Sierra Club and the Southern Border Communities Coalition (SBCC), highlighted multiple findings by lower courts that Trump’s plan for funding the border wall is an unlawful workaround of a decision by Congress not to fund the project.

"No court has suggested that the Sierra Club and SBCC do not face real injuries from Trump’s actions," the ACLU said in a statement this morning.

The Supreme Court was already involved in the border wall funding fight during its preliminary stages.

After the 9th U.S. Circuit Court of Appeals struck down the military funds transfer, the justices said they wouldn’t dissolve its earlier block on a construction stay issued by a district court.

The court’s liberal wing dissented to the denial.

Percival noted the courts’ unwillingness to engage in "the larger problem" of the government waiving environmental laws to move forward with border wall construction.

The Supreme Court this summer rejected a petition by environmental groups that said the Department of Homeland Security illegally suspended the National Environmental Policy Act and Endangered Species Act to build border barriers.

The Center for Biological Diversity lost its battle on those issues in the lower courts (Greenwire, June 29).

‘We look forward to making our case’

Outside of the courthouse, environmental activists have sought to focus public attention on the impacts of the new border wall construction on critical wildlife habitat as well as the Native American tribes whose lands are situated on the U.S.-Mexico boundary.

Those efforts involve the release of internal Trump administration communications, including exchanges between the National Park Service and DHS.

Those documents, provided under the Freedom of Information Act, indicate that DHS ignored recommendations at the Organ Pipe Cactus National Monument about the need to space bollards at intervals large enough to permit animal movement as well as height restrictions to accommodate low-flying species (Greenwire, Sept. 11).

The Center for Biological Diversity likewise published communications from the Fish and Wildlife Service showing the Trump administration ignored concerns over groundwater pumping related to construction near the San Bernardino National Wildlife Refuge (Greenwire, Aug. 12).

Activists have also focused social media attention on impacts to the Tohono O’odham Nation’s reservation, situated on a 62-mile section of the border in Arizona. The tribe’s membership is likewise split with 34,000 members in Arizona and 2,000 members in northern Mexico.

House Democrats have also slammed the Trump administration for failing to coordinate with Native American tribal leaders as it purses new construction.

"Imagine how we’d react if a hostile government dug up Revolutionary War soldiers’ remains without consequence or stole our groundwater while they thought we weren’t looking," Natural Resources Chairman Raúl Grijalva (D-Ariz.) said earlier this year (Greenwire, Jan. 9)

Grijalva has also been a leading critic of the Interior Department’s decision to use emergency withdrawal authority to hand over administrative control of more than 600 acres of public land to the Department of the Army, in order to speed construction.

Democrats also proposed spending $75 million on efforts to mitigate the border barriers’ environmental impacts in a fiscal 2021 spending bill for the Department of Homeland Security, which includes U.S. Customs and Border Protection (E&E Daily, July 7).

Smith of the Sierra Club said she sees the pending Supreme Court funding fight as an opportunity to stop the border wall’s harm.

"Stopping this wasteful and irreversible damage is long overdue," she said, "and we look forward to making our case before the Supreme Court."